In the Summer Dave and David Smith posted about the case of Kinnear v Whittaker in the High Court. Bean J allowed an appeal against the summary disposal of a possession claim where the defendant had raised proprietary estoppel as a defence. This interesting and important question about the interaction between estoppel and s.2 of the Law of Property (Miscellaneous Provisions) Act 1989 was therefore put off until trial.

The claimants appear to have been too excited to wait until then (or, more likely, but less poetically, they wanted to avoid the expense of a trial) and so appealed to the Court of Appeal. On Wednesday Stanley Burnton LJ refused permission.

What is interesting is that he made it quite clear that, even though this was a second appeal, if Bean J had made his decision following the a trial of the claim, the Lord Justice would have given permission regardless of the outcome. The Court of Appeal are as interested in resolving this question as the rest of us.

However proprietary estoppel is fact sensitive stuff. The Lord Justice noted that the claim has a trial window in April/May 2012. There was therefore nothing to be gained by having the Court of Appeal resolve the point before then. It might be that the defendant failed to establish the factual basis of her claim, in which case there would be no need for an appeal – and we would all remain in the dark. It would also be better for any prospective appeal to be dealt with on the basis of facts found at trial rather than on pleadings.

We will keep you posted.